"The appellee...argues that the fetus is a "person" within the language and meaning of the Fourteenth Amendment...If this suggestion is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed... All this...persuades us that the word "person", as used in the Fourteenth Amendment, does not include the unborn."
-Roe v. Wade
The question of abortion is not a religious issue. It is a secular one. To understand this, one must understand the question that the 1972 Supreme Court decision known as Roe v. Wade was answering. The question decided by Roe was simply this: can the Federal Government define and identify a group of human beings to whom the legal rights and protections of personhood do not apply? This question is manifested in Blackmun’s own words, which form the header of this piece, and which bear repeating: "The appellee...argues that the fetus is a "person" within the language and meaning of the Fourteenth Amendment...If this suggestion is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed..." What was the point of this phrase?
On March 6, 1857, United States Supreme Court Chief Justice Taney handed down the Court’s decision regarding the case of one Dred Scott, a black slave who had sued for his freedom based on his residence for a period of time in the free territory of Wisconsin. The Court’s decision was that Dred Scot was, and had always been, property, and the fact that his owner had temporarily resided Scott in the free territory of Wisconsin did not change that. The central point in all this was not whether Scott was a human being, a person – the Court clearly said that he was, and referred to him as such. The question was whether this person could also be property and as such be ineligible for full protection under the laws of the United States. The Court’s answer was, “yes”, as long as he is a member of a particular subset of persons, specifically, blacks of African descent. Further, the Court endorsed the right of a person to choose to own a member of this particular subset of persons. One of the central disputes in the Civil War was the issue of states’ rights vis a vis the Federal Government: the Confederacy had some very legitimate beefs regarding the expanding powers of the Federal Government. Unfortunately, the right that the Confederate States chose as a vehicle to launch what was, in principle, a legitimate complaint was the right to choose to own another human being, provided he was a member of a defined subset of human beings.
Subsequent to the Civil War, the Congress recognized this problem, and the 14th Amendment was born. It goes like this:
All persons born or naturalized in the United States... are citizens of the United States and the States wherein they reside... nor shall any State deprive any person within its jurisdiction the equal protection of the laws.
And so the matter stood in our nation for 104 years. Not all persons were citizens, but all persons were given equal protection under law. Thus, a man who climbs over the border fence into Texas is not a citizen (not as of this writing, anyway), but he is a person. As such, if I shoot him I am just as liable to prosecution as I would be if he were a citizen and I shot him. That the framers of the 14th Amendment simply assumed that the definition of “personhood” extended to include unborn babies is supported by the simple fact that virtually all the States in the Union already had laws outlawing abortion and there is no record that anyone in the late 1860’s felt any need to alter that. By 1973, though, things had changed: the power elite wanted abortion legal. Justice Blackmun realized that he couldn’t do this because the 14th Amendment stood in the way. Notice that nowhere here is anyone talking about whether the unborn child is human or not, or alive or not, because it so obviously is both of those things. So, to get around the question of personhood, the Court simply, unilaterally, declared the unborn child an unperson to whom the protection of the law did not apply. As Justice Byron White noted in his written dissent, this was an exercise in raw judicial power.
Consider these two statements, both from the United States Supreme Court, the firts from Roe v. Wade, the second from Scott v. Sanford:
"All this...persuades us that the word "person", as used in the Fourteenth Amendment, does not include the unborn."
"A free negro, of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States."
What both Scott v. Sanford and Roe v. Wade were about was deciding whether the Government could identify groups of biological human beings who were not protected under the law. In both instances, the Court’s answer was, “Yes, we can. We can identify subgroups of human beings to whom the protections of the law do not apply." This point cannot be overemphasized. In the 19th Century the identified subgroup was blacks of African descent. In the 20th, they were unborn children unwanted by their mothers. At the dawn of the 21st Century – who knows? Anyone can be an unperson. There is no meaningful logical difference between a man’s right to choose to own a member of a specified subgroup of humans, and a woman’s right to choose to kill a member of a specified subgroup of human beings. Indeed, as evil as slavery is, abortion is even more evil. In slavery, the slave is not condemned to death. In abortion, the child will die.
The question of abortion is not a religious issue, but a secular one. The question, simply, is this: do the legal protections of “personhood” extend to all biological human beings, or can some groups be exempted? How we answer this question has profound implications for the society our children will inherit.